Debating duties of U.S. universities in China

A number of commentators have taken issue with my article arguing that U.S. and other foreign universities operating in China are violating human rights norms by not speaking out to protest the government's crackdown on the human rights community. Professor Roderick Hills of New York University Law School has taught at NYU’s Shanghai campus. With his permission I am reprinting an exchange we had debating the merits of my argument.

Professor Roderick Hills

Rob, I have enjoyed, and benefited from, your thoughtful commentary on American universities’ position in China. As you know, I tend to disagree with some of your positions, although not vehemently. In particular, I believe that your final question below requires clarification of the baseline of expectations. Your expectation is that, if western universities do not make China “more like us,” then there is no point to cultural exchange with China.

Your baseline expectations are misplaced.

What would you say to someone who believed that this was a mistaken baseline? Suppose that I concede that China will never be “like us”: what follows from that concession? I am not sure why it should follow that American universities should lessen their presence in China. How would their withdrawal make an authoritarian state less authoritarian? Who would be left better off (measuring from the baseline of continued authoritarian rule in China) from less cultural/intellectual exchange?

The answers I typically receive in response to this question take two forms -- an empirical claim and a normative or linguistic claim. I call the first claim the “legitimizing” argument and the second, the “complicity” argument.

American schools are not legitimizing the Chinese government.

The empirical claim is that, if American universities withdrew in protest, then somehow China would be less authoritarian. On this account, American universities’ presence legitimizes a regime in the eyes of some unspecified audience, variously described as “the World,” “the Chinese public,” etc. I have never seen much evidence supporting this “stop-legitimizing-and-reform-will-go-faster” claim.

The normative claim is that it is simply immoral to be “complicit” in China’s bad deeds. If U.S. schools are present in a regime where bad things are done and remain silent, then they are “complicit” in those bad things: The “complicity” claim, therefore, rests on either a claim about linguistics and interpretation or just a simple moral stipulation. Silence just should, on this normative account of the complicity, be interpreted as approval. Again, almost no deep philosophical or linguistic argument is marshaled for the assumption that silence equals approval. The claim is asserted with little more than hand-waving.

To my mind, the “legitimizing” empirical claim is very likely factually untrue. Boycotts of any sort seem to me remarkably ineffective even with small, poor nations like North Korea, Cuba, Albania, etc. They are likely to be even more ineffective with a giant nation like China. My own view is that moral denunciations of China’s bad deeds have value, but American universities’ presence in China does very little to impede such attacks. HRW, Amnesty International, etc., perform this function very well. Enlisting universities to add their voice would add very little and sacrifice opportunities for exchange that a physical presence allows.

The complicity argument is hard to defend.

The “complicity” argument seems to me really hard to defend as interpretative or normative theory. There are lots of reasons, well-known by all informed people, why American universities prudently remain silent in the face of bad acts by oppressive officials. It is really difficult for me to understand why anyone with knowledge of the facts would attribute consent or approval to universities’ silence. To the contrary, I would take such silence – icy, fish-eyed, cold silence, one might say -- to suggest disapproval. The accusation of complicity really seems to me, therefore, to be in reality an accusation that American universities do not share their detractors’ view about the relative valuelessness of intellectual/cultural engagement with authoritarian regimes compared to a marginal extra increment of public outrage.

In short, my baseline is different from yours, but the question turns on empirical questions difficult to resolve and normative questions that do not frequently get aired very clearly. If you have thoughts on either the empirical evidence or the normative argument, I think that those thoughts would be a great contribution to this difficult debate.

My Reply

Baseline expectations.

Rick, it is not my baseline expectation that that western universities or other businesses operating in China should make the government less authoritarian. As you’ve written elsewhere, western universities can provide Chinese students with a unique educational experience and safe space where people are free to listen to opinions and make up their minds. There is a true value in this mission, and it has nothing to do with making the Chinese government less authoritarian. The problem is balancing this worthy educational goal against certain realities of doing business in China that potentially harm human rights. My baseline expectation is that universities and businesses follow the UN’s Guiding Principles on Business and Human Rights which attempt to balance these competing factors.

Legitimization.

You take issue with the argument that the presence of American universities “legitimizes a regime in the eyes of some unspecified audience, variously described as ‘the World,’ ‘the Chinese public,’ etc. I have never seen much evidence supporting this ‘stop- legitimizing-and -reform-will-go-faster claim.’”

Others disagree with your viewpoint. Some scholars, such as Teng Biao, believe that the presence of U.S. universities has the effect of endorsing the regime. He may be wrong, but how does one balance the competing claims of people like you who say that the universities are providing a valuable service and the claims of activists who believe that the U.S. universities are endorsing the regime and demoralizing persecuted human rights workers?

The UN’s Guiding Principles for Business and Human Rights is one way out of the conundrum. They are far from perfect, but the Guiding Principles seems to incorporate the cost-benefit analysis that I believe you support. The Guiding Principles don't dictate a result. They are a mode of analysis. The Guiding Principles lay out a number of factors that business decision makers should at least consider when doing business with a particular partner. The imperfect analogy that I come up with is the warrant requirement. Courts have developed a framework for determining when the issuance of a warrant is justified. There are a number of factors to consider -- evidence of crime, the privacy interest, exigencies, etc. The framework does not tell courts how to rule but how to apply factors transparently so that they can be reviewed. I believe universities should not be afraid to identify both the costs and the benefits in a transparent way. That's what the Guiding Principles do.

Complicity.

You write: “It is really difficult for me to understand why anyone with knowledge of the facts would attribute consent or approval to universities’ silence.” If the universities were disinterested third party witnesses to the human rights violations I would agree that it makes no sense to view silence as complicity. The problem of complicity arises because of the very close business relationship between the universities and the Chinese government. The western universities voluntarily entered the country, signed contracts with the Ministry of Education, and most of the universities are receiving generous subsidies from the government.

I am not arguing that universities are under a moral obligation to speak out. But is it a satisfactory situation to simply say to universities, we trust your good faith, you figure this thing out yourselves and we won't question your judgment? There has to be some commonly accepted guidelines to judge when a business is merely a passive witness to human rights abuses and when it becomes complicit because it fails to speak up or take any action. Perhaps you are right, it is not feasible to require universities to do certain things in China that directly confront the government but it can do other things to distance themselves from the oppressive policies, such as policy statements on their websites and, yes, respectful joint statements reiterating the importance of fair trials for everyone. Is that so provocative?

Another way to express my baseline expectation is accountability. It doesn't have to be through the Guiding Principles, it can be through another system of evaluation, but there needs to be some evaluation criteria by which to judge the human rights records of universities that are cooperating so closely with an authoritarian government. Can you think of a better framework?